Within the next week, the city council of Topeka, Kansas, is expected to make a decision that may decriminalize misdemeanor battery in the city. The move comes in response to a decision made by the Shawnee County District Attorney’s Office to stop prosecuting all misdemeanor cases, including those pertaining to domestic violence, after a 10% budget reduction. “If the D.A. thinks that we don’t want to play hardball, I say we all suit up and play hardball,” stated council member Chad Manspeaker.

Here’s why this would be a terrible decision.

In Kansas – like most other states – domestic battery is divided into misdemeanors and felonies, with the former comprising the largest percentage of battery cases. A misdemeanor is defined as “intentionally or recklessly causing bodily harm to another person; or … causing physical contact with another person when done in a rude, insulting or angry manner.” In order to qualify as a felony the offender has to intentionally or recklessly inflict “great” bodily harm, utilize a deadly weapon or intend to cause death. As you can imagine, these definitions frequently become problematic as prosecutors and defense attorneys tend to disagree on the difference between “great” bodily harm and misdemeanor bodily harm — a common problem in the prosecution of domestic battery cases in any state. The nebulousness of these definitions are one of the main reasons that felony assault cases are downgraded to misdemeanorbattery offences.

Felony to misdemeanor downgrades happen for numerous reasons. At times, prosecutors and advocates want to spare survivors from having to experience the trauma of testifying in front of their abuser, and convincing the defendant to agree to a misdemeanor plea bargain outside of court allows the defendant to be punished without additional stress on the survivor. More often than not, however, different reasons are the cause. In cases of strangulation (a felony in many states), it may be difficult to provide sufficient evidence that the victim was strangled as accurately dating bruises is difficult and consequently, defense attorneys frequently attack its reliability. Unless the victim seeks immediate medical attention and medical staff immediately document all evidence of strangulation, it can be very difficult to build a strong enough case to prosecute felonious strangulation even though strangulation is an indicator of a high lethality situation. Secondly, going to trial is expensive, costing states millions of dollars per year, and a plea bargain deal saves the state money. Other factors also go into a charge reduction; the consequences of a felony may deter both victim and prosecutor from wanting to press a felonious charge or there may be a different reason entirely on the part of victim or attorney.

Shawnee County’s decision to stop prosecuting misdemeanor cases of domestic battery already negatively impacts domestic violence cases because the survivors who fall through the cracks in a functional justice system are left even more vulnerable. Any felonious case that is only considered strong enough to be pursued as a misdemeanor would be dismissed, leaving abusers on the street and survivors in danger. Due to the vague language defining a felony, serious battery could be classified as misdemeanor battery by police officers and attorneys handling the report; a problem that Topeka activist Claudine Dombrowski has repeatedlynoted. Felonies aside, it is important to remember that even though current lethality indicators can provide an accurate assessment of the danger in a domestic violence situation, domestic violence related homicides occur after incidents of misdemeanor battery as well. By not prosecuting misdemeanor battery and decriminalizing it, many families will be placed in significant danger. An on site arrest after a 911 call gives survivors time to access crisis resources, establish restraining orders, come up with safety plans, or gather their important belongings and leave. It is a period of time that saves lives, and decriminalizing domestic battery would severely limit a police officer’s ability to protect victims of domestic violence.

Manspeaker’s misguided (at best) game of hardball should not be directed at the county District Attorney’s Office, as he said, but at the perpetrators of domestic violence. In this “game” it is clearly not the city or county budget that loses, but the victims — and Kansas can’t afford to put more people in danger. In 2009, 35 people in Kansas were killed as a result of Domestic Violence, an 84% increase from 2008. It should be obvious, but citizens lives and wellbeing should not be treated as a game of budget chicken.